UNDT/2009/015, Abboud
The “reason to believe” must be more than mere speculation or suspicion: it must be reasonable and hence based on facts sufficiently well founded – though of course, not necessarily proved – to rationally incline the mind of the decision maker to the belief. It is clear that the question is one of fact and degree in which the decision maker is bound to act reasonably but which necessarily involves the exercise of judgment. It is inaccurate to refer to such a judgment as the exercise of a discretion. If the USG in this case had in fact decided that there was “reason to believe” that the relevant misconduct had occurred, he was left with no residual discretion to refuse to conduct a preliminary investigation but was bound to conduct one. Of course, if there is a reasonable basis for a judgment and the decision is not affected by impropriety, bias or mistake of fact, merely that another person – or, for that matter, the Tribunal – might independently make a different judgment is immaterial. In that sense, such a judgment is treated for the purposes of judicial review in the same way as the exercise of a discretion reposed in a decision maker. If the USG failed to enquire about the motives for the staff member’s alleged actions, then his enquiries were insufficient to establish whether it was “reasonable to believe” that misconduct occurred. In order for him to have obtained sufficient information for the purpose of making the relevant administrative decision, namely whether to initiate a preliminary decision, it is at least arguable that he needed to enquire more of the panel members to ascertain in greater detail, while memories were fresh, how it was that the staff member conducted himself and what he said and also to enquire about the staff member’s reasons for acting as he did. An off-hand sarcastic remark might have been harmless and the adverse questioning of the Applicant might have been trivial, but they might well not have been. Moreover, if the USG failed to consider what motivated the staff member to act as he did, he failed to consider a material fact and his decision cannot stand for that reason. It is important to bear in mind that this conduct did not occur in the course of idle conversation or even an official meeting. It was alleged to have occurred during a promotion process in which equality of treatment of the applicants is rigorously to be maintained and is not only a fundamental part of the propriety of the entire procedure but self-evidently so, and the surmise that a member of the panel might not have known the importance of equal treatment can be dismissed out of hand. There is sufficient merit in the Applicant’s case to warrant a full hearing. Put otherwise, the acts alleged by the Applicant, if accepted, do not lead to the conclusion that as a matter of law the Respondent is entitled to judgment.
The decision made on 15 July 2008 by the relevant Under Secretary-General (USG) not to undertake a preliminary investigation into allegations of improper behaviour and abuse of authority made by the Applicant against another staff member.
Where the preliminary investigation “appears to indicate that the report of misconduct is well founded” a full report is made to the Assistant Secretary-General, Office of Human Resources Management and certain steps then must be taken, ultimately leading, where it appears that the allegation “should be pursued”, to the charging of the staff member with misconduct, possible suspension and a hearing (as it then was) before the Joint Disciplinary Committee or summary dismissal. The existence of a reason to believe that unsatisfactory conduct occurred is insufficient, in itself, to trigger the requirement that a preliminary investigation should be conducted. The alleged conduct must not only be unsatisfactory, it must also be such that imposition of a disciplinary measure might be warranted. There might well be “reason to believe” that a certain fact occurred without there being any actual belief that it did. Moreover, there might be “reason to believe” the fact occurred even if the decision maker was subjectively of the positive belief that it had not occurred, a fortiori if he or she had no belief one way or the other. The question is not whether the decision maker has a subjective belief one way or another; the question is whether there is, objectively, reason for the belief that the relevant conduct occurred. It is not for the decision maker to determine the facts and his or her personal belief about whether the posited misconduct occurred is completely irrelevant: his or her sole task is to ascertain whether there is a “reason to believe” that the misconduct occurred and then to initiate a preliminary investigation, whatever his or her opinion might be about whether it had occurred. It is necessary for the decision maker to make sufficient preliminary enquiries to allow him or her to make the relevant decision and, in this respect, there is accorded a substantial degree of administrative discretion. What is sufficient will depend on the circumstances. A failure to make enquiries that, objectively speaking, were reasonably required in order to determine whether or not there was a reason to believe that the relevant misconduct occurred will, for obvious reasons, mean that the administrative discretion has miscarried. The requirement of a summarily dismissal of a case is satisfied where there is no dispute as to the facts for the purposes of the motion, in other words where there is no need to determine any factual controversy in order to decide whether the moving party is entitled to judgment as a matter of law. Were a staff member to use the interview of the kind undertaken here for the purpose of satisfying some personal animosity or grievance against a candidate for promotion, that could well amount to an abuse of office and constitute serious misconduct. It would amount to a gross breach of trust and could have incalculable adverse consequences for the candidate. The presence of such feelings mandated withdrawal from the panel.
The Judgment concerns a motion for summarily dismissal of a case. The motion is rejected.